In our article of last week, we started discussing the matter of Parliamentary privileges. In today’s article, having just been intellectually rejuvenated by the award of the prestigious Doctor of Laws ( Honoris causa) degree of the prestigious University of Dar es Salaam (the mother and pathfinder of all Tanzanian Universities), Dr. Pius Msekwa will today investigate this particular law of Parliamentary privileges in greater depth and detail.
The historical background.
Although ‘Parliamentary privilege’ is a common phenomenon in Legislative practices worldwide, yet public knowledge regarding this matter, and particularly of its practical application ; is pretty scanty. In our own parliamentary history, there have been very few and isolated examples of the application of the law of parliamentary privilege, a factor which has contributed to the general lack of knowledge and understanding regarding this particular matter.
The historical background.
Although ‘Parliamentary privilege’ is a common phenomenon in Legislative practices worldwide, yet public knowledge regarding this matter, and particularly of its practical application ; is pretty scanty. In our own parliamentary history, there have been very few and isolated examples of the application of the law of parliamentary privilege, a factor which has contributed to the general lack of knowledge and understanding regarding this particular matter.
In view of that, it is perhaps worthwhile narrating the following episode, as my little contribution to the enhancement of that knowledge.
There was this case of Julius Ishengoma Francis Ndyanabo vs Attorney General , which was decided on 14th February, 2007, in which the court of Appeal condemned Parliament, allegedly for having “exceeded its legislative powers”.The facts of that case were, briefly, the following:-Parliament had enacted an amendment to section 111 (2) of the Elections Act, 1985; which raised to five million shillings, the previous meaningless deposit of shs five hundred, required to be made by a petitioner in an election petition, in order for his case to proceed to hearing.
The Court of Appeal firstly held that this section of the Act was unconstitutional; and secondly, that “Parliament had exceeded its legislative powers in enacting the unconstitutional provision”.
The said appeal was against the High Court judgement which had dismissed the same petition, seeking a declaration that the relevant provisions of the Elections law, were unconstitutional
I was the Speaker of the House at the material time. Thus, in a spirited defense of Parliament’s action in enacting this amendment, I wrote a well researched presentation which was published simultaneously in two local English language newspapers, namely, the DAILY NEWS, and The AFRICAN, on 26th February, 2002; challenging the assertion that ‘Parliament had exceeded its legislative powers’. My challenge was based on two firm grounds: One was the previous Tanzania High Court decision in the case Reverend Mtikila vs Attorney General, TRL 31; which had acknowledged Parliament’s inherent powers to legislate, in the following words: “Our Constitution confers upon Parliament very wide legislative powers, which are to be found in article 98 (1) and (2). In the first place, it has to be accepted that Parliament has the power to amend even those provisions providing for basic human rights; and secondly, that that power is not confined to a small sphere, for it extends even to modifications of those provisions, the suspension, or repeal and replacement of the same; and to re-enactment or modification in the application thereof”.
The other ground was my contention that in making that decision, the Appeal Court had deliberately disregarded the provisions of article 30(5) of the Constitution of the United Republic of Tanzania, 1977”.
The said appeal was against the High Court judgement which had dismissed the same petition, seeking a declaration that the relevant provisions of the Elections law, were unconstitutional
I was the Speaker of the House at the material time. Thus, in a spirited defense of Parliament’s action in enacting this amendment, I wrote a well researched presentation which was published simultaneously in two local English language newspapers, namely, the DAILY NEWS, and The AFRICAN, on 26th February, 2002; challenging the assertion that ‘Parliament had exceeded its legislative powers’. My challenge was based on two firm grounds: One was the previous Tanzania High Court decision in the case Reverend Mtikila vs Attorney General, TRL 31; which had acknowledged Parliament’s inherent powers to legislate, in the following words: “Our Constitution confers upon Parliament very wide legislative powers, which are to be found in article 98 (1) and (2). In the first place, it has to be accepted that Parliament has the power to amend even those provisions providing for basic human rights; and secondly, that that power is not confined to a small sphere, for it extends even to modifications of those provisions, the suspension, or repeal and replacement of the same; and to re-enactment or modification in the application thereof”.
The other ground was my contention that in making that decision, the Appeal Court had deliberately disregarded the provisions of article 30(5) of the Constitution of the United Republic of Tanzania, 1977”.
In support of which, I presented what at that time were ‘new developments’ in the field of law, relating to the proper relationship between the Judiciary and the Legislature. Specifically, I made references to the ‘ Latimer House Guidelines for the Commonwealth’; which had been drawn up, and approved, by the representatives of the Commonwealth Parliamentary Association ; the Commonwealth Magistrates and Judges Association; the Commonwealth Lawyer’s Association; and the Commonwealth Legal Education Association; meeting at Latimer House in the United Kingdom; which stated as follows:- “The legislative function is primarily the responsibility of Parliament, as the elected body representing the people. Judges may be constructive and purposive in their interpretation of legislation, but must not usurp Parliament’s legislative function. Courts have the power to declare legislation to be unconstitutional and of no legal effect. However, there may be circumstances where the appropriate remedy would be for the court to declare the incompatibility of a statute with the Constitution, leaving it to the Legislature to take remedial legislative measures”.
But, very unfortunately, some malicious journo, who obviously had never been inside a law classroom, and therefore could not comprehend neither the purpose nor the meaning of my scholarly presentation, jumped to the wrong conclusion that I had ‘attacked’ the Judges; when he published a news item on the front page of a popular Kiswahili newspaper, with the eye-catching headline of “MSEKWA AWASHAMBULIA MAJAJI”.
But, very unfortunately, some malicious journo, who obviously had never been inside a law classroom, and therefore could not comprehend neither the purpose nor the meaning of my scholarly presentation, jumped to the wrong conclusion that I had ‘attacked’ the Judges; when he published a news item on the front page of a popular Kiswahili newspaper, with the eye-catching headline of “MSEKWA AWASHAMBULIA MAJAJI”.
This headline quickly attracted many misguided and off-the point comments, from all and sundry, including, surprisingly, the Tanganyika Law Society; which issued a prepared statement falsely claiming that “the article was an attack on the Judiciary by the Speaker ! All of these misguided comments merely revealed the existence of widespread, dismal ignorance, of the Constitution, as well as of the law on Parliamentary privilege; and indeed demonstrated the urgent need to rectify this situation. The full story of this episode is succinctly told in my book titled ‘The Story of the Tanzania Parliament’, pp 70 – 93.
The good news is that after this ‘storm in a tea cup’ had settled, Parliament , in a clear demonstration of its unchallengeable supreme authority in enacting legislation, soon passed another law which raised that disputed deposit of five million shillings, to fifteen million shillings. “He laughs best who laughs last”.
The origins of Parliamentary Privilege.
Parliamentary privilege in Tanzania, originates from British Parliamentary practice, which was applied to this country even long before independence. When the British colonial Administration decided to establish the Tanganyika Legislative Council in 1926, the instrument which established it, namely ‘The Tanganyika (Order-in-Council), 1926’; made provisions which empowered the Governor to make the Council’s Standing Orders and Rules, ‘in order to maintain order and method in the dispatch of its business and in the conduct of debates”. The said Standing Orders also vested in the Legislative Council certain powers and privileges, including the power to invite and order the withdrawal of ‘strangers’ (i.e. persons who are not members or officials of the Council); to summon witnesses to appear before the Council or its committees to give evidence; and to punish members for disorderly conduct. Subsequently, the “Legislative Council (Powers and Privileges) Ordinance was enacted in April 1955, which gave statutory recognition to the Council’s powers and privileges; that included immunity for members of the Council from legal proceedings for words spoken in the Council or its committees; freedom from arrest for civil debts, and from being served with summons during sittings of the Council and its committees. And further prescribed that any act, or omission, amounting to a breach of these privileges was a punishable offence.
This law was preserved after the country’s independence, but was repealed in 1988, and replaced by “The Parliamentary Immunities, Powers and Privileges Act, 1988”, which is the law that is currently in use, after it was amended in 2004.
The essential components of Parliamentary privilege.
The acclaimed ‘book of authority’ , Erskine May’s ‘Treaties on the law, privileges, proceedings and usage of Parliament” (Twenty first edition) says the following at page 69:- Parliamentary privilege is the sum of the peculiar rights enjoyed by each House of Parliament, and by its members individually, without which they could not discharge their functions,, and which actually exceed those possessed by other bodies or individuals”.
Essentially, parliamentary privilege comprises the following components:- (i) Freedom of speech and debate in the House. This originates from the English Bill of Rights of 1689, which declared that “the freedom of speech and debate, or proceedings in Parliament, ought not to be impeached or questioned in any court or place outside Parliament”.
The origins of Parliamentary Privilege.
Parliamentary privilege in Tanzania, originates from British Parliamentary practice, which was applied to this country even long before independence. When the British colonial Administration decided to establish the Tanganyika Legislative Council in 1926, the instrument which established it, namely ‘The Tanganyika (Order-in-Council), 1926’; made provisions which empowered the Governor to make the Council’s Standing Orders and Rules, ‘in order to maintain order and method in the dispatch of its business and in the conduct of debates”. The said Standing Orders also vested in the Legislative Council certain powers and privileges, including the power to invite and order the withdrawal of ‘strangers’ (i.e. persons who are not members or officials of the Council); to summon witnesses to appear before the Council or its committees to give evidence; and to punish members for disorderly conduct. Subsequently, the “Legislative Council (Powers and Privileges) Ordinance was enacted in April 1955, which gave statutory recognition to the Council’s powers and privileges; that included immunity for members of the Council from legal proceedings for words spoken in the Council or its committees; freedom from arrest for civil debts, and from being served with summons during sittings of the Council and its committees. And further prescribed that any act, or omission, amounting to a breach of these privileges was a punishable offence.
This law was preserved after the country’s independence, but was repealed in 1988, and replaced by “The Parliamentary Immunities, Powers and Privileges Act, 1988”, which is the law that is currently in use, after it was amended in 2004.
The essential components of Parliamentary privilege.
The acclaimed ‘book of authority’ , Erskine May’s ‘Treaties on the law, privileges, proceedings and usage of Parliament” (Twenty first edition) says the following at page 69:- Parliamentary privilege is the sum of the peculiar rights enjoyed by each House of Parliament, and by its members individually, without which they could not discharge their functions,, and which actually exceed those possessed by other bodies or individuals”.
Essentially, parliamentary privilege comprises the following components:- (i) Freedom of speech and debate in the House. This originates from the English Bill of Rights of 1689, which declared that “the freedom of speech and debate, or proceedings in Parliament, ought not to be impeached or questioned in any court or place outside Parliament”.
In our case, this is provided for in section 3 of the Parliamentary Immunities, Powers and privileges Act, 1988, as follows :- “There shall be freedom of speech and debate in the Assembly, and such freedom shall not be liable to be questioned in any court or place outside the Assembly”. This privilege protects the MPs from any action for libel for words spoken in the House during its debates. But the MP can still be prosecuted if he dares to repeat his words in any place outside Parliament, for the privilege does not protect him outside Parliament.
(ii) Freedom from arrest in civil proceedings. This privilege is strictly limited to civil causes; and cannot be applied to criminal proceedings. It was designed for the purpose of enabling MPs to attend and participate in parliamentary business without fear of arrest in civil causes.
(iii) Freedom from the requirement of attending court proceedings as a witness. But this exemption is subject to obtaining leave of the House. The relevant section of the Act reads thus: “ No member or Officer . . . shall give evidence elsewhere without the special leave of the Assembly first had and obtained . . . This special leave may be given by the Speaker during a recess, or adjournment of the Assembly”.
The justification for this privilege is that, since Parliament has the paramount right over the attendance and service of its members when the House is in session; any call on its members to attend elsewhere, should not be entertained.
The procedure is for the Speaker to communicate with the court drawing attention to this privilege, and asking that the member be excused, in view of the fact that a meeting of the House is in progress.
However, our parliamentary records contain an embarrassing example of a breach of this requirement to obtain leave, which was committed by three members of Parliament and two officials, who had been summoned to give evidence in the High Court in criminal appeal case no. 61 of 1999, of Augustine Lyatonga Mrema vs Republic. Having received the said summons, the three MPs and the two Officials just went to the High court to give evidence, without first seeking and obtaining leave of the Assembly, or of the Speaker, as prescribed by the law of parliamentary privilege; and the trial Judge dully admitted their evidence.
However, our parliamentary records contain an embarrassing example of a breach of this requirement to obtain leave, which was committed by three members of Parliament and two officials, who had been summoned to give evidence in the High Court in criminal appeal case no. 61 of 1999, of Augustine Lyatonga Mrema vs Republic. Having received the said summons, the three MPs and the two Officials just went to the High court to give evidence, without first seeking and obtaining leave of the Assembly, or of the Speaker, as prescribed by the law of parliamentary privilege; and the trial Judge dully admitted their evidence.
When the case went on appeal to the Court of Appeal, the Appeal Judges strongly criticized what had taken place, in the following words:- “To us, “special leave” implies the availability of tangible evidence of leave having been granted. That leave cannot be presumed, either by the witness -to-be, or by the court, least of all in a criminal matter where the life of an individual is at stake . . . In view of this, it is surprising that the three MPs, and the two officials were permitted to give evidence, without the slightest indication that they had obtained special leave, let alone any leave, to do so” .
The appeal Judges also gave a ‘polite’ scolding, or rebuke, to the trial magistrate; when they said this: “It is even more confounding that even though the relevant provisions were drawn to the attention of the learned trial magistrate, he still proceeded to receive the evidence, as if those provisions did not exist, or did not matter. We cannot pretend to be happy with the magistrate’s style in the conduct of this trial”.
(To be continued next week)
piomsekwa@gmail.com / 0754767576.
The appeal Judges also gave a ‘polite’ scolding, or rebuke, to the trial magistrate; when they said this: “It is even more confounding that even though the relevant provisions were drawn to the attention of the learned trial magistrate, he still proceeded to receive the evidence, as if those provisions did not exist, or did not matter. We cannot pretend to be happy with the magistrate’s style in the conduct of this trial”.
(To be continued next week)
piomsekwa@gmail.com / 0754767576.
Source: Daily News and Cde Dr Msekwa Himself.
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